On this appeal we are asked to consider whether a municipal transit authority's

dress code which mandates that all employees wear pants as part of a driver'suniform is an unconstitutional infringement when applied to a female employeewho seeks to wear a skirt. The female employee alleges that her FourteenthAmendment rights to due process and equal protection of the law, and her FirstAmendment right to free expression were all violated by the governmentaldirective. The Scots' poet Robert Burns wrote that rank and clothes are "but theguinea's stamp," and that "[a] man's a man for a' that!" Robert Burns, For A'That And A' That, in III The Poetical Works of Robert Burns 152 (Boston,Little, Brown & Co. 1863). But the aggrieved female driver insists that awoman forced by her employer to wear pants on the job is not "a woman for a'that." We have no doubt she strongly feels this as she makes plain in her papers,but our inquiry must be focused on whether the Constitution grants her the rightto ignore her employer's dress code. We conclude that it does not.

BACKGROUNDA. Facts2

The facts in this case are not in dispute. Appellant Grazyna Zalewska wasemployed by the Sullivan County Transportation Department in SullivanCounty, New York, as a van driver for a "Meals on Wheels" program fromJanuary 1996 until April 2000. Zalewska's duties included transporting seniorcitizens from their homes to various nutrition sites and transporting food fromthe county's main kitchen to those sites where the senior citizens were fed.

On December 1, 1999 the county instituted a policy mandating that all

Department of Transportation employees wear a uniform while working. Itsstated purpose was to "encourage ... customers to be more respectful of thedrivers, to foster a positive esprit-de-corps among drivers and to project anoverall positive appearance for the County of Sullivan in its ongoing efforts topromote itself." The required uniform consisted of a shirt, a jacket, and a pair ofpants. Pants were mandated because the county believes "pants are safer thanskirts for the operators of vans, particularly vans with chair lifts, as the operatormust assist customers on and off the vehicle." The policy was adopted inconsultation with Zalewska's union, and a written agreement between thecounty and the union acknowledged that all drivers would have to wear the newuniforms or face disciplinary action.

Upon learning of the new policy, Zalewska, who "as a matter of familial andcultural custom ... [had] never worn pants in her entire life" asked hersupervisor, Transportation Coordinator Terence O'Neill, why she could notwear a skirt. She was told the policy would not be altered and that no exceptionwould be made for her. Nonetheless, when Zalewska went to the private vendorto be fitted for her uniform, she requested and obtained a skirt instead of pants.She explained her action by stating that for her "the wearing of a skirtconstitutes ... an expression of a deeply held cultural value." Appellant workedin her customized uniform for three weeks without incident. On April 17, 2000her supervisor demanded that she return the skirt, and informed her that she hadto wear pants if she wanted to return to work. Subsequently, the county filedcharges of misconduct and insubordination against Zalewska, accusing her ofrefusing to return items that were charged to and paid for by the TransportationDepartment, and of refusing to wear the required uniform to work. Zalewskawas suspended from her position as a van driver, and transferred to anothercounty department where she still works at the time of this appeal. At her newpost, she is allowed to wear a skirt and receives the same pay as she had as avan driver.

B. Prior Proceedings5

In response to the county's action, Zalewska filed the instant suit in the UnitedStates District Court for the Southern District of New York (Chin, J.), seekingdamages under 42 U.S.C. 1981 and 1983. In her complaint, she alleged thatdefendants deprived her of her rights to due process and equal protection of thelaw under the Fourteenth Amendment, and of her right to free expression underthe First and Fourteenth Amendments to the United States Constitution. Uponsubmission of a set of stipulated facts and upon both parties' motions forsummary judgment, the district court dismissed Zalewska's claims and grantedsummary judgment to defendants, Sullivan County, Judith Maier and TerenceO'Neill. Zalewska appeals that judgment. We affirm.

DISCUSSIONI Waiver of Jury Trial6

Before turning to the merits, a procedural issue raised on this appeal must firstbe resolved. Appellant declares that since she never gave her express andunequivocal consent that the trial court proceed with a summary bench trial, herright to a jury was not waived. See Acuff-Rose Music, Inc. v. Jostens, Inc., 155F.3d 140, 142-43 (2d Cir.1998). Further, she asserts that the county's no-skirtpolicy is based on unsupported conclusory contentions, so that the key findingof whether such a policy was rational presents a fact issue to be decided by ajury. We disagree.

Although in its opinion the district court discussed the permissibility of a

summary bench trial, its ultimate disposition of appellant's claims did not reston judicial factfinding. As it expressly stated in denying appellant'sreconsideration motion, the record presented no factual disputes. The questionof rationality of the county's policy, which we discuss later, is one of law, notfact. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257(1993). The county was found entitled to judgment as a matter of law under thetraditional summary judgment principles. Accordingly, whether appellantwaived her right to a jury trial is irrelevant. We turn now to the merits.

II Standard of Review8

We review a trial court's decision to grant summary judgment de novo. See

Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2dCir.2002). Because there are no disputed questions of fact, but only questions oflaw, we must decide if the district court erred in granting summary judgment

Zalewska alleges that Sullivan County's regulation prohibiting van drivers fromwearing skirts is a violation of her right to free expression under the First andFourteenth Amendments. The First Amendment inquiry contains two parts: (1)whether Zalewska's actions constitute "expressive conduct" entitled toprotection under the First Amendment, as incorporated by the Fourteenth; andif so, (2) whether the county's regulation impermissibly denies her suchprotection. See Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105L.Ed.2d 342 (1989).

10

Appellant's First Amendment argument rests on her claim that wearing a skirt isfor her "an expression of a deeply held cultural value." So strongly held is herdesire to express her cultural values that she declares she has never worn pants.We realize that for Zalewska as for most people clothing and personalappearance are important forms of self-expression. For many, clothingcommunicates an array of ideas and information about the wearer. It canindicate cultural background and values, religious or moral disposition,creativity or its lack, awareness of current style or adherence to earlier styles,flamboyancy, gender identity, and social status. From the nun's habit to thejudge's robes, clothing may often tell something about the person so garbed.

11

Yet, the fact that something is in some way communicative does notautomatically afford it constitutional protection. For purposes of the FirstAmendment, the Supreme Court has repeatedly rejected the view that "anapparently limitless variety of conduct can be labeled `speech' whenever theperson engaging in the conduct intends thereby to express an idea." UnitedStates v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Weechoed this view in East Hartford Educ. Ass'n v. Bd. of Educ. of the Town ofEast Hartford, 562 F.2d 838 (2d Cir.1977), where we recognized thatacknowledging the symbolic speech-like qualities of a course of conduct is"only the beginning, and not the end, of constitutional inquiry." 562 F.2d at857.

12

To determine whether conduct is expressive and entitled to constitutional

protection requires an inquiry into whether the activity is "sufficiently imbuedwith the elements of communication to fall within the scope of the First andFourteenth Amendments," Johnson, 491 U.S. at 404, 109 S.Ct. 2533, for not all

conduct may be viewed as speech simply because by her conduct the actorintends to express an idea. See Spence v. Washington, 418 U.S. 405, 409, 94S.Ct. 2727, 41 L.Ed.2d 842 (1974). To be sufficiently imbued withcommunicative elements, an activity need not necessarily embody "a narrow,succinctly articulable message," Hurley v. Irish American Gay, Lesbian andBisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487(1995), but the reviewing court must find, at the very least, an intent to conveya "particularized message" along with a great likelihood that the message willbe understood by those viewing it. Johnson, 491 U.S. at 404, 109 S.Ct. 2533;Spence, 418 U.S. at 410-11, 94 S.Ct. 2727. Neither of those elements is presenthere.13

is not a specific, particularized message, but rather a broad statement of culturalvalues. Action attempting to communicate such a "vague and unfocused"message is afforded minimal if any First Amendment protection. East Hartford,562 F.2d at 858. In East Hartford we reviewed a public school's decision toreprimand a teacher who violated the school's dress code by refusing to wear anecktie. See id. at 856. The plaintiff there contended, as Zalewska does here,that the school impermissibly deprived him of his rights to free speech and dueprocess. On his First Amendment claim, the teacher asserted that his refusal towear a tie was "speech" because it conveyed a message of non-conformity anda rejection of older traditions, by which he hoped to establish closer rapportwith his students. See id. at 857. We ruled that even though plaintiff's actionswere intended as expression, the message purportedly conveyed was a"comprehensive view of life and society" which was "sufficiently vague" toallow the school to regulate it without running afoul of the Constitution.Similarly, Zalewska's actions here seek to communicate a vague, overarchingview of cultural tradition.

14

2. Comprehensibility of Message. Second, it is difficult to see how Zalewska's

broad message would be readily understood by those viewing her since noparticularized communication can be divined simply from a woman wearing askirt. Essential to deciding whether an activity carries a perceptible messageentitled to protection is an examination of the context in which the activity wasconducted. See Johnson, 491 U.S. at 405, 109 S.Ct. 2533. The Supreme Courthas been careful to distinguish between communicative activity with a clearcontextual message, such as the wearing of a black armband in protest duringthe Vietnam War, compared with other types of activity, like choosing what towear in the ordinary course of employment. See Tinker v. Des Moines Sch.Dist., 393 U.S. 503, 507-08, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thestatement in Tinker that regulation of "length of skirts or type of clothing, ...

hair style, or deportment" is different from that sort of regulation that "involvesdirect, primary First Amendment rights akin to `pure speech'" suggests that aperson's choice of dress or appearance in an ordinary context does not possessthe communicative elements necessary to be considered speech-like conductentitled to First Amendment protection. 393 U.S. at 507-08, 89 S.Ct. 733. Seealso Kelley, Comm'r, Suffolk County Police Dep't v. Johnson, 425 U.S. 238,245, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (discussing Supreme Court FirstAmendment precedents).15

Of course, there may exist contexts in which a particular style of dress may be asufficient proxy for speech to enjoy full constitutional protection. A state courtin Massachusetts, for example, found in Doe ex rel. Doe v. Yunits, 2000 WL33162199 (Mass.Super.Oct.11, 2000), that a male high school student's decisionto wear traditionally female clothes to school as an expression of female genderidentity was protected speech. Although not binding on us, this case illustratesthe point. In Yunits, the plaintiff's dress was an expression of his clinicallyverified gender identity. This message was readily understood by others in hishigh school context, because it was such a break from the norm. It sent a clearand particular message about the plaintiff's gender identity. By contrast, awoman today wearing a dress or a skirt on the job does not automatically signalany particularized message about her culture or beliefs.

16

Although appellant's activity is expressive, it does not constitute the type of

expressive conduct which would allow her to invoke the First Amendment inchallenging the county's regulation because the ordinary viewer would gleanno particularized message from appellant's wearing of a skirt rather than pantsas part of her uniform. Given that Zalewska's conduct does not constituteexpressive conduct entitled to First Amendment protection, we need not discusswhether the county impermissibly denied her that protection. See Johnson, 491U.S. at 403, 109 S.Ct. 2533. Accordingly, the district court properly dismissedappellant's First Amendment claim.

B. Due Process1. Liberty Interest in Appearance17

Zalewska further maintains that Sullivan County's dress code deprived her ofher liberty interest in personal appearance without due process of law inviolation of the Fourteenth Amendment. A substantial body of precedentsuggests the existence of a liberty interest in one's personal appearance. Ingeneral, "[l]iberty under law extends to the full range of conduct which theindividual is free to pursue." Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct.

Several of our sister circuits have specifically found the existence of a libertyinterest in appearance, see Rathert v. Village of Peotone, 903 F.2d 510, 514 (7thCir.1990) (police officers wearing earrings); DeWeese v. Town of Palm Beach,812 F.2d 1365, 1367 (11th Cir.1987) (prohibiting shirtless male joggerunreasonable); Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5thCir.1982) (prohibition against beards applied to teachers in public school).While neither our Circuit nor the Supreme Court has squarely ruled on theissue, both have assumed the existence of such an interest in deciding casessimilar to the one before us. See Kelley, 425 U.S. at 244, 96 S.Ct. 1440(assuming liberty interest in appearance for members of police force whileupholding police department's regulation of hair length); see also EastHartford, 562 F.2d at 861 (assuming liberty interest in appearance for highschool teacher while upholding school's requirement that teacher wear necktie).We agree with the district court's comment that "[s]ince Kelley, the nation'scourts have assumed or found [a liberty interest] in a veritable fashion show ofdifferent factual scenarios." Accordingly, we also assume, for purposes of thisopinion, the existence of a liberty interest in appearance.

19

The more difficult question is whether Sullivan County unconstitutionally

infringed on Zalewska's liberty interest by mandating that she wear pants on thejob. The appropriate standard depends, in part, on context and circumstances.See East Hartford, 562 F.2d at 863. In examining context, as already noted,courts have found greatly significant the distinction between regulating publicemployees and regulating members of the public at large. In Kelley, theSupreme Court upheld a police department's hair and grooming regulationagainst a challenge similar to the one presented here. The Court noted the "widelatitude" accorded the government in managing its internal affairs, particularlyin regulating a police force. See Kelley, 425 U.S. at 247, 96 S.Ct. 1440.

20

We explicitly extended this reasoning to all public employment, noting that in

that context, a liberty interest in choice of apparel is far from a "fundamentalright," United States v. Carolene Products, 304 U.S. 144, 152 n. 4, 58 S.Ct.778, 82 L.Ed. 1234 (1938), and is therefore afforded only the minimalprotection of the rational basis test. See East Hartford, 562 F.2d at 861 & n. 13;see also Kelley, 425 U.S. at 245, 96 S.Ct. 1440 (noting that "there is surely evenmore room for restrictive regulations of state employees where the claimimplicates only the more general contours of the substantive liberty interest

protected by the Fourteenth Amendment"); Tardif v. Quinn, 545 F.2d 761, 763(1st Cir.1976) ("Whatever constitutional aspect there may be to one's choice ofapparel generally, it is hardly a matter which falls totally beyond the scope ofthe demands which an employer, public or private, can legitimately make uponits employees.").2. Claim Analyzed Under Rational Basis Review21

Because Zalewska's claim does not implicate a fundamental right, it is subject

to rational review. Accordingly, we analyze Zalewska's liberty interest claimunder rational review. Rational basis review has been part of Americanjurisprudence since the nation's earliest days. Under it, the legislative orexecutive regulation must be permissible, rationally related to a legitimategovernment interest, and not impose an irrational burden on individuals. If theend is "legitimate" and not prohibited by the Constitution, and the means are"appropriate" and "plainly adapted to that end," then the legislation or policy isconstitutional. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421-23, 4L.Ed. 579 (1819). And, for a court to further "inquire into the decree of itsnecessity, would be to pass the line which circumscribes the judicialdepartment, and to tread on legislative ground." Id. Thus, rational reviewrequires a nexus between legitimate government ends falling withinconstitutionally permissible powers, and a means not prohibited by theConstitution to achieve them.

22

Applying that standard, the county's dress code is valid unless it is "soirrational that it may be branded `arbitrary,' and therefore a deprivation of[appellant's] `liberty' interest." Kelley, 425 U.S. at 248, 96 S.Ct. 1440. Thecounty need only articulate a legitimate government interest to which itsregulation is rationally related. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,314-15 & n. 6, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam); Johnson v.Robison, 415 U.S. 361, 376, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Williamsonv. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed. 563(1955). It is stipulated in the record before us that the county believes "thewearing of a skirt, rather than pants[,] presents a safety issue for van operators"and "the wearing of pants as part of the uniform projects a professionalappearance for the drivers, encourages customers to demonstrate respect forCounty drivers, fosters a positive attitude on behalf of the drivers and projectsan overall positive image for the County of Sullivan."

23

We accept that safety, professionalism, and a positive public image are

legitimate interests for the county to pursue, and we are not in a position toweigh arguments in favor of and against a pants-only uniform for fear of

treading on executive ground.

24

The county's regulation rests on firm ground with its goal of promoting safety.The county points out that a long, wide skirt may pose a safety problem foremployees operating chair lifts and helping people on and off buses. AlthoughZalewska challenges the validity of such concerns, "the question is not ...whether the [county] can establish a genuine public need for the specificregulation." Kelley, 425 U.S. at 247, 96 S.Ct. 1440. If there is any "reasonablyconceivable state of facts that could provide a rational basis" for believing thatskirts may pose a safety concern, it is not so arbitrary as to fail theconstitutional test. Heller, 509 U.S. at 320, 113 S.Ct. 2637 (quoting FCC v.Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d211 (1993)); see also Williamson, 348 U.S. at 487-88, 75 S.Ct. 461 (holdingthat "the law need not be in every respect logically consistent with its aims").Because a long or wide skirt could conceivably become entangled in a chair liftmechanism, whereas a narrow skirt could conceivably restrict a driver'smovements to the point of interfering with her ability to help people on and offa van, the county's safety argument is not irrational.

25

We do think, however, that the prohibition on the wearing of a skirt as an

adjunct of professionalism and in encouraging customer respect may besomewhat problematic. Were it our decision to make, we would perhaps notembrace the notion that skirts are inherently unprofessional or that wearingthem does not encourage customer respect or enhance the service's publicimage. But, it is not our decision to make and, in any event, we have alreadyaccepted that safety, professionalism, and a positive public image are legitimateinterests for the county to pursue. Hence, we defer to the county's decision anduphold its no-skirt dress code for female van drivers employed by the county.

C. Equal Protection26

It has long been recognized that certain forms of gender discrimination warrantenhanced scrutiny by courts, requiring that the challenged classification besubstantially related to an important government purpose. See Craig v. Boren,429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). State action isimpermissible if it perpetuates old gender stereotypes by the disparatetreatment of similarly situated men and women based on sex. See id. at 198-99,97 S.Ct. 451. Appellant here urges that the county is subjecting her todiscrimination by forcing her to "dress more masculinely," in a way that isdemeaning to women. Asking us to accept the proposition that a womanwearing pants dresses more masculinely requires a perpetuation of the verystereotypes that courts are supposed to suppress. In this modern day men and

women regularly wear pants in the course of all manner of business and leisure.27

More importantly, we do not find in the county's policy the kind of purposefuldiscrimination that would trigger the equal protection clause. See PersonnelAdmin. of Mass. v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 60 L.Ed.2d 870(1979) (holding that in gender discrimination, "purposeful discrimination is thecondition that offends the Constitution"). Concededly, the county's policy ofdisallowing skirts will affect women more than men because women will beprohibited from wearing an article of clothing they might choose to wear whilemen will not. But such incidental burden alone does not trigger a heightenedlevel of scrutiny where, as here, the policy itself is gender-neutral. See id. In theabsence of discriminatory intent, gender-neutral classifications that burden onesex more than the other are subject only to rational basis review. See id. at 27174, 99 S.Ct. 2282. It is undisputed that the county's policy is gender-neutral;discriminatory intent is not even alleged. As a consequence, the county's rule issubject only to rational basis review. As we already concluded in discussingappellant's due process claim, the county dress code passes this test and wesimilarly conclude that the dress code did not violate appellant's right to equalprotection of the law.

CONCLUSION28

In sum, with respect to appellant's First Amendment symbolic speech claim,

Zalewska's conduct is not constitutionally protected "expressive" conduct, andher actions do not implicate free speech protections. And, although appellantmay have a liberty interest in her personal appearance, requiring her to wearpants as part of her uniform did not violate her right to due process of the law orher right to equal protection. The district court therefore was warranted ingranting Sullivan County summary judgment.